Understanding Rape Charges & Legal Defence
What the Offence is
A person may be charged with rape when the prosecution allegethat a person has had sexual intercourse, or continued to have sexualintercourse, with another person without the consent of that person (orcontinuing where consent has been withdrawn).
A charge for the offence of rape is contained under section 48 ofthe Criminal Law Consolidation Act 1935 (SA), which states:
(1) A person is guilty of the offence of rape if he or sheengages, or continues to engage, in sexual intercourse with another person who—
(a) does not consent to engaging in the sexual intercourse; or
(b) has withdrawn consent to the sexual intercourse,
and the offender knows, or is recklessly indifferent to, the factthat the other person does not so consent or has so withdrawn consent (as thecase may be).
Why you Need Legal Advice
A rape charge is life-altering, carrying severe legal and personal consequences. If convicted, you could face a lengthy prison sentence, registration as a sex offender, and permanent damage to your reputation and future prospects.
If you have been charged with rape, it is critical to get experienced legal representation immediately. Stanley & Co Lawyers can help you understand your rights, build a strong defence, and fight for the best possible outcome. Call Stanley & Co Lawyers today on 08 7001 6135 to book a complimentary 30-minute confidential consultation with an expert Criminal Defence Lawyer.
Helpful Questions & Answers
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What the Prosecution Needs to Prove
When prosecuting aperson with an offence the prosecution must prove every element of that offence.
An element of an offence is a fact or aspect of the offence that the prosecution must prove to successfully prosecute someone for that offence.
For the charge of rape, the elements of that offence are:
- The prosecution must prove that there wassexual intercourse between the defendant and the complainant. Sexualintercourse is defined in the Criminal Law Consolidation Act 1935 (SA) as any activity (whether of a heterosexual or homosexual nature) consisting of or involving penetration (however slight) of a person's vagina, labia majora or anus by any part of the body of another person or by any object; or fellatio or cunnilingus and includes a continuation of such activity.
- That the sexual intercourse between thedefendant and the complainant was without the consent of the complainant.
- That the defendant knew the complainant had not consented to the sexual intercourse or had withdrawn consent to the sexual intercourse, or that the defendant was ‘recklessly indifferent’ as to whether the complainant was consenting.
- That the defendant intended to have sexua lintercourse without the consent of the complainant or had a reckless indifference towards having sexual intercourse without the consent of the complainant.
Section 47 of the Criminal Law Consolidation Act 1935 (SA) defines reckless indifference regarding a charge of rape as when:
A person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—
(a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether theother person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c) does not give any thought as to whether or not the other person is consenting to the act or has withdrawn consent to the act before deciding to proceed.
What are the Maximum Penalties for the Offence
The maximum penalty that could be imposed upon a finding ofguilty for the charge of Rape is life imprisonment.
Defences to a Charge of Rape
Consent
If the defendant can prove that the complainant had consented to the sexual intercourse, then this would be a defence to a charge of rape.
The prosecution must prove every element of the offence for a person to be found guilty of rape. The prosecution must prove each element beyond a reasonable doubt. In simple terms, if a finder of fact (a jury or judge) has a reasonable doubt in their mind about one of the elements of the offence, they must find the defendant not guilty.
Relevant Court
The proceedings relating to a charge of rape will be heard in the District Court of South Australia.
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